Gem Lake Harbor deemed private

By RUTH BROWN rbrown@postregister.com

A Bonneville County judge appears to have bucked state legal precedence in deciding a trespassing complaint concerning an ice fisherman on Gem Lake Harbor.

District Judge Joel Tingey's written decision -- issued Tuesday -- ruled in favor of local businessman Doyle Beck. Beck built the harbor off the Snake River south of Idaho Falls in 1989 and bought irrigation rights to about 70 acre-inches of water to fill it.

Beck, through his company BRP Inc., earlier this year filed a civil trespassing complaint against Brandon Harkness. He claimed Harkness trespassed by ice-fishing at the harbor Jan. 25 despite the no trespassing signs posted around the waterway.

Tingey ruled that because Beck owned the former gravel pit and purchased a water right to fill it, that Gem Lake Harbor does not meet the state's definition of a navigable waterway, which would make it open to public use.

The judge's decision runs counter to a 2006 Idaho Attorney General's opinion that said Beck only owned the land beneath the water, but that the water itself, and the fish living in it, belong to the people of Idaho.

BRP Inc.'s attorneys took exception to a section of Idaho law that states a stream or waterway "in its natural state" is considered navigable.

They argued that the harbor is not a waterway "in its natural state" because it is man-made.

Tingey cited code 36-1601 that states "an artificial diversion of water over private property does not render the property open to the public."

Beck's suit against Harkness claimed he violated common trespassing law, as well as an additional crime of recreational trespassing on cultivated lands or in violation of warning signs.

Tingey ruled Harkness only violated common trespassing law; he did not violate recreational trespassing in violation of warning signs law.

As a result of the decision, Harkness will be fined for trespassing and forced to pay Beck's legal fees. The amount of damages he must pay has not yet been determined.

Prior to Tingey's decision, Idaho Department of Fish and Game officials believed Gem Lake Harbor was public water.

Fish and Game officials also believed Beck's ongoing effort to keep sportsmen off Gem Lake Harbor was what amounted to interference with hunting, fishing or wildlife control -- a misdemeanor crime.

The law -- Idaho Code 36-1510 (d) -- states, "No person shall: ... Harass, intimidate or threaten by any means including, but not limited to, personal or written contact, or via telephone, e-mail or website, any person who is or was engaged in the lawful taking or control of fish or wildlife."

Fish and Game investigated the incident and turned its investigation report, dated Feb. 8, over to the Bonneville County Prosecutor's Office so that Beck could be charged with the crime.